A Losing Strategy

The U.S. Bishops' Campaign Against the Contraception Mandate

Margaret O'Brien Steinfels April 23, 2012 - 11:11am

What are the U.S. Catholic bishops really arguing about[1] with the Obama administration? Is it religious liberty, as they insist? Is it contraception and sterilization, as the headlines in my archdiocesan paper stress? Is it a desire, conscious or unconscious, to reassert their authority after the dog days of the sexual-abuse scandal? Is it simply anti-Obama prejudice? Maybe it’s all of the above, and then some: perhaps they just lack astute advisers. In any event, the daunting task of explaining the Catholic bishops to others and to oneself has come a cropper. They are digging a hole from which they may never emerge.

Of course, the Obama administration did itself no favors when it tried to define what was and was not a religious institution for the purposes of the exemption. That definition, written into an HHS regulation issued in early January, required that nonexempt religiously sponsored institutions provide their employees insurance coverage for contraception and sterilization. Only houses of worship and parish schools were exempt from providing such coverage; religiously sponsored colleges and universities, hospitals, and social-service agencies were not. In failing to provide an accommodation for religiously affiliated institutions, the administration did not run afoul of the First Amendment, but it did unite Catholics of all stripes in protest—at least temporarily.

That uproar got the administration’s attention, after which there has been much backpedaling. A new “Advance Notice of Proposed Rulemaking,” issued March 16, has the tone of “whatever you want, just tell us.” The new proposal does not rescind but minimizes the previous differentiation between exempt and nonexempt religious institutions, rejecting any implication that only some have a genuinely religious mission and emphasizing that any definition determined for purposes of contraceptive coverage will have no application or precedent for other federal policies. The proposal turns cartwheels to protect Catholic institutions, including the self-insured, from direct responsibility for providing contraceptive coverage—it has insurance companies or some other third party handle it.

Still, perhaps mistaking the initial Catholic protest for a standing army, the bishops continue to say no to Obama. Yes, they’ve left the door open for further negotiations—but just a crack. Unless they widen that opening, they will seize certain defeat from the jaws of near victory.

Who does the USCCB’s fervor and intransigence actually represent? Is it the view only of the bishops at the forefront of the public protest, while the many dutifully stand back in the name of consensus? How can so many otherwise prudent and experienced bishops remain silent? Why has the conference been so implacable, even going so far as to move the goal posts by demanding that any business owner be able to opt out on religious grounds? It’s difficult to see the merits of this expanding Constitutional argument. And politically it makes no sense: Why would anyone expect the Obama administration to remove contraception and sterilization from mandated health-care services (as the bishops and Rush Limbaugh seem to demand)? Constitutionally, the bishops’ claim that “the government has no place defining religion and religious ministry” doesn’t hold up. While U.S. legal tradition favors government restraint in this area, at some point the organs of democratic government must decide whether to grant, say, tax exemptions to the Church of Scientology or to the Church of the Flying Spaghetti Monster.

While the March 16 proposals continue to give women access to contraception and sterilization coverage, objecting religious institutions and the bishops are off the “material cooperation” hook because they won’t have to provide it directly. Yes, some problems remain. But isn’t this how policy-making goes in a pluralistic society?

Indeed, this could have ended in a victory for the bishops on a teaching most adult Catholics don’t accept, even if they defend their bishops’ right to insist on it. The bishops might have kept their army intact if the mandate had been about abortion (it isn’t, despite the USCCB’s repeated claim that some contraceptives are abortifacients). But the bishops march on, seemingly oblivious to the damage they are doing to their already diminished authority, as well as to their credibility on matters that need a vigorous and rational voice: immigration, unemployment, poverty, the threat of war with Iran, and assisted suicide (on the ballot in Massachusetts).

On the issues that the bishops seem to count as paramount—the legal right to contraception, abortion, and same-sex marriage—they have already lost the cultural argument, even with many Catholics. Seeking to reverse a cultural defeat through political muscle is a misbegotten strategy. Losing an argument is not a disgrace. But losing because you’re fighting in the wrong arena? That’s just dumb.